IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

IN RE INTEREST OF C.A.

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

IN RE INTEREST OF C.A., ALLEGED TO BE A DANGEROUS SEX OFFENDER.

C.A., APPELLANT,

V.

MENTAL HEALTH BOARD OF THE FOURTH JUDICIAL DISTRICT 

AND STATE OF NEBRASKA, APPELLEES.

Filed November 22, 2016. No. A-16-575.

Appeal from the District Court for Douglas County: HORACIO J. WHEELOCK, Judge.

Affirmed.

Thomas C. Riley, Douglas County Public Defender, and Ryan T. Locke for appellant.

Eric W. Wells, Deputy Douglas County Attorney, for appellee State of Nebraska.

MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.

RIEDMANN, Judge.

INTRODUCTION

C.A. appeals from the decision of the district court for Douglas County, affirming the 

decision of the Mental Health Board of the Fourth Judicial District (Board). The Board found C.A. 

to be a dangerous sex offender under the Sex Offender Commitment Act (SOCA), Neb. Rev. Stat. 

§ 71-1201 et seq. (Reissue 2009), and ordered him to undergo secure inpatient treatment. We find 

no merit to the arguments raised on appeal and therefore affirm.

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BACKGROUND

The Douglas County Attorney filed a petition with the Board, alleging that C.A. was a 

dangerous sex offender within the meaning of SOCA. A hearing before the Board was held in 

January 2016. Dr. Alan Levinson, a psychologist with the Nebraska Department of Correctional 

Services, testified regarding an evaluation of C.A. he conducted in October 2015. In order to 

formulate his opinions and diagnoses, Levinson reviewed background information on C.A.’s 

criminal offenses and institutional records, interviewed C.A. for approximately 6 hours, and 

utilized actuarial diagnostic tools. At the time of Levinson’s evaluation, C.A. was serving a five 

year sentence after pleading no contest to an amended charge of intentional child abuse without 

serious bodily injury or death. According to Levinson’s report, the victim was C.A.’s 13 year old 

daughter, who reported that she awoke to C.A. touching her vaginal area and breasts on top of her 

clothes on two occasions within a 30 minute time frame.

C.A. has a 20-year history of sexually assaulting women. In 1993, he was convicted in 

Arizona of kidnapping and attempted sexual assault after forcibly subjecting the victim to 

penetration. In 2009, C.A. subjected two separate victims to forcible penetration in Florida. He 

was initially charged with two counts of sexual assault, but the charges were reduced to felony 

battery. C.A. also has two convictions for sex offender registration violations.

In assessing whether C.A. is a dangerous sex offender, Levinson utilized actuarial 

diagnostic tools including the Static-99-R, the Stable-2007, and the Sex Offender Risk Appraisal 

Guide (SORAG). The Static-99-R is designed to estimate the risk of sexual recidivism among sex 

offenders by assessing 10 factors which tend to stay relatively stable over time. C.A. scored a 6, 

which places him at a high risk for committing future sex offenses relative to other male sex 

offenders. Statistically, a score of 6 equates to approximately a 20 percent chance of sexually 

reoffending in 5 years and a 27 percent chance over a 10 year period. The Stable-2007 similarly 

predicts an offender’s likelihood of committing a future sex offense by measuring risk factors that 

tend to change over time, usually in relation to participation in treatment. C.A. scored a 12, which 

is high risk or high level of treatment needs. The Static-99 score and Stable-2007 score are 

generally combined to provide a broader idea of overall risk of reoffense. C.A.’s combined score 

placed him in the very high risk category.

The SORAG is a list of 14 factors which are associated with sexual recidivism and provides 

an overall idea of an offender’s likelihood to engage in violent behaviors, including sexually 

violent behavior. C.A.’s score placed him in the sixth of nine “bins” where a score in the ninth bin 

is the highest risk level. Statistically, his score showed a 59 percent chance of committing a violent 

offense within a 7 year period, and a 78 percent chance of committing a violent offense within a 

10 year period.

Levinson also evaluated C.A. pursuant to the diagnostic criteria outlined in the Diagnostic 

and Statistical Manual of Mental Disorders Fourth Edition (DSM-IV). He diagnosed C.A. with 

paraphilia not otherwise specified with hebephilic and nonconsensual tendencies. This diagnosis 

was based on C.A.’s history of sexually assaulting four nonconsenting females, including his then 

13 year old daughter, over an extended period of time. Levinson explained at the hearing that 

C.A.’s diagnosis meets the definition of mental illness under SOCA, because it shows a propensity 

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to engage in these sexual behaviors without regard for others and a thought process that allows 

him to engage in these behaviors. Levinson also diagnosed C.A. with alcohol abuse, because his 

abuse of alcohol has contributed to social, occupational, and legal difficulties, including his current 

and previous sexual offenses. Finally, C.A. was diagnosed with personality disorder not otherwise 

specified with antisocial and narcissistic features because of his disregard for societal rules, 

irresponsibility, lack of concern for others, sense of entitlement, interpersonal exploitation of 

others, arrogance, and disregard for the safety of others.

Based on C.A.’s diagnoses, Levinson opined to a reasonable degree of psychological 

certainty that C.A. has the propensity to engage in repeat acts of sexual violence which would 

result in serious harm to others, because he shows disregard for other people and has demonstrated 

a pattern of behavior that shows he will do what he wants when he has the opportunity. Levinson 

also opined that C.A. poses a menace to the health and safety of the public, because he has not 

demonstrated that he has taken any steps to alleviate or mitigate his issues. Levinson expressed 

concern about C.A.’s ability to recognize all of his warning signs and ability to independently seek 

help when warning signs arise. C.A.’s two convictions for sex offender registration offenses 

concern Levinson because they show a pattern of behavior and a disregard for rules and the ability 

to follow them.

Levinson also voiced concern that C.A.’s descriptions of his sexual offenses differed 

significantly from police reports and presentence investigation reports. For the most recent offense, 

C.A. denied intentionally touching his daughter’s breasts or vaginal area, but the victim reported 

he did so intentionally on two separate occasions. C.A. also minimized the prior offense which 

occurred in Arizona, and Levinson was concerned that the offense was much more violent than 

C.A. reported and there was never any consent from the victim to engage in sexual activity.

In Levinson’s opinion, inpatient treatment was the least restrictive treatment alternative 

that would prevent C.A. from committing future sex offenses. Levinson believed that the structure 

and security provided by an inpatient program was necessary, and if C.A did not complete inpatient 

treatment, he would have serious difficulties controlling or resisting the desire to commit future 

sex offenses. Levinson explained that C.A.’s personality disorder is pervasive and develops over 

time, so it takes more time and effort to address in treatment, and there is no evidence that C.A. 

has done anything to mitigate his risk for reoffense.

Ray Myers, a counselor and psychotherapist, testified that if C.A. was ready for outpatient 

treatment, he would be willing to provide it. Assuming C.A. was ready for treatment, Myers 

believed that outpatient treatment would be the least restrictive treatment alternative. Myers did 

not evaluate C.A. or utilize any diagnostic tools; he deferred to Levinson’s assessment and 

diagnoses. Myers opined that C.A. was ready for treatment because he looked and acted tired and 

showed genuine remorse, especially over his daughter. Despite this, Myers testified that C.A. 

adamantly denied sexually assaulting his daughter; he claimed he may have inadvertently touched 

her but denied doing so intentionally. If Myers provided outpatient treatment to C.A., he would 

provide a maximum of two hours of therapy per week. The only requirement for Myers’ patients 

is to make and keep their appointments; otherwise, they do not have to check in with him.

At the conclusion of the hearing, the Board found by clear and convincing evidence that 

C.A. was a dangerous sex offender. The Board also determined that C.A. was likely to engage in 

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repeat acts of sexual violence, had been convicted of one or more sex offenses, and was 

substantially unable to control his behavior.

The Board concluded that C.A. needed more intensive treatment than that offered by 

outpatient treatment and, thus, found that inpatient treatment was the least restrictive alternative in 

order to manage C.A.’s behaviors and protect the safety of the public. The Board recognized that 

C.A. had participated in programs while incarcerated but noted that shortly after he was released 

from incarceration in Florida, during which he participated in programming, he faced another 

charge of a sex offense in a short time.

C.A. appealed the Board’s decision to the Douglas County District Court. The district court 

affirmed, finding that the Board’s decision was supported by clear and convincing evidence. C.A. 

now appeals to this court.

ASSIGNMENTS OF ERROR

C.A. assigns that the district court erred in (1) affirming the Board’s finding that he is a 

dangerous sex offender and (2) affirming the Board’s finding that inpatient treatment is the least 

restrictive treatment alternative.

STANDARD OF REVIEW

The district court reviews the determination of a mental health board de novo on the record. 

In re Interest of S.J., 283 Neb. 507, 810 N.W.2d 720 (2012). In reviewing a district court’s 

judgment, an appellate court will affirm unless it finds, as a matter of law, that clear and convincing 

evidence does not support the judgment. Id.

ANALYSIS

Dangerous Sex Offender.

C.A. argues that the district court erred in affirming that the State proved by clear and 

convincing evidence that he is a dangerous sex offender. In order to establish that C.A. is a 

dangerous sex offender under SOCA, the State was required to prove that he is a person who 

suffers from a mental illness which makes him likely to engage in repeat acts of sexual violence, 

who has been convicted of one or more sex offenses, and who is substantially unable to control his 

criminal behavior. Neb. Rev. Stat. § 83-174.01 (Reissue 2014).

C.A. first claims that the evidence was lacking to prove that he suffers from a mental 

illness. Under SOCA, a mental illness means having a psychiatric disorder that involves a severe 

or substantial impairment of a person’s thought processes, sensory input, mood balance, memory, 

or ability to reason which substantially interferes with such person’s ability to meet the ordinary 

demands of living or interferes with the safety or well-being of others. Neb. Rev. Stat. §§ 71-907 

and 71-1203 (Reissue 2009).

Levinson diagnosed C.A. with paraphilia not otherwise specified with hebephilic and 

nonconsensual tendencies. He testified that paraphilia not otherwise specified is an Axis I mental 

illness under the DSM-IV and satisfies the definition of mental illness under § 71-907. See also In 

re Interest of D.H., 281 Neb. 554, 797 N.W.2d 263 (2011) (paraphilia not otherwise specified is 

an Axis I mental illness under the DSM-IV). There was no expert testimony to the contrary 

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suggesting that C.A. does not suffer from mental illness or that C.A.’s mental illness does not meet 

the required definition. Thus, the expert testimony of Levinson supports the finding that C.A. has 

a mental illness. See id.

Because the State established that C.A. has a mental illness under SOCA, it was required 

to prove that he has been convicted of at least one sex offense. Sex offense means any of the 

offenses listed in section 29-4003 for which registration as a sex offender is required. 

§ 83-174.01(5). Kidnapping is listed in section 29-4003, and thus, C.A.’s 1993 kidnapping 

conviction satisfies this requirement.

C.A. next argues that the evidence was insufficient to establish that his mental illness 

makes him likely to engage in repeat acts of sexual violence and that he is substantially unable to

control his criminal behavior. Likely to engage in repeat acts of sexual violence means the person’s 

propensity to commit sex offenses resulting in serious harm to others is of such a degree as to pose 

a menace to the health and safety of the public. § 83-174.01(2). Substantially unable to control his 

criminal behavior means having serious difficulty in controlling or resisting the desire or urge to 

commit sexual offenses. § 83-174.01(6).

Levinson explained that a diagnosis of paraphilia not otherwise specified has been shown 

to increase the likelihood of repeated acts of sexual violence. He opined that therefore C.A. was 

likely to engage in repeat acts of sexual violence which would result in serious harm to others, 

because he shows disregard for other people and has demonstrated a pattern of behavior that shows 

that when he gets the opportunity he will do what he wants. Levinson also testified that C.A. poses 

a menace to the health and safety of the public, because he has not demonstrated that he has taken 

any steps to alleviate or mitigate his issues. Levinson believed that based on C.A.’s diagnoses, if 

he did not complete inpatient treatment, he would have serious difficulties controlling or resisting 

the desire to commit future sex offenses.

In reaching his opinions, Levinson also relied on the diagnostic tools which demonstrated 

that C.A. was a high risk to reoffend. C.A. claims these results are unreliable and insufficient to 

prove that he is likely to engage in repeat acts of sexual violence.

In In re Interest of G.H., 279 Neb. 708, 781 N.W.2d 438 (2010), the sex offender argued 

that his diagnostic test results did not provide a sufficient basis for the psychologist’s opinion that 

he would pose a danger if released without treatment. The Supreme Court noted that the 

psychologist did not rely exclusively on the results of the STATIC-99, Stable 2000, and SORAG 

assessments in forming his opinion; rather, he also considered the history he obtained from the sex 

offender and the clinical interview he conducted. Further, the psychologist testified that the risk 

assessment instruments were peer reviewed and generally accepted in the field of psychology as a 

means of assessing the risk that a convicted sex offender will reoffend. Thus, the court concluded 

that there was adequate foundation for the admission of the risk assessment scores, and they were 

properly considered by the Board and district court as part of the basis for the psychologist’s 

opinions. Id. See also In re Interest of O.S., 277 Neb. 577, 763 N.W.2d 723 (2009) (concluding 

that psychologist’s evaluation, which included STATIC-99 and SORAG scores, was sufficient and 

probative of the fact that sex offender remained a danger to society).

In the present case, as in In re Interest of G.H., Levinson did not rely solely on the 

diagnostic scores to assess C.A.’s risk to reoffend. Rather, he also relied on his interview with C.A. 

and C.A.’s history. He noted that C.A.’s diagnosis of paraphilia not otherwise specified has been 

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shown to increase the likelihood of repeat acts of sexual violence. Levinson also noted that C.A. 

reported completing sex offender treatment programming while incarcerated in Florida, but was 

convicted of a sexual offense thereafter. Based upon C.A.’s history and scores in the high risk or 

very high risk levels, Levinson concluded that C.A.’s history of sexual perpetration is suggestive 

of someone substantially unable to control or resist the desire or urge to commit sexual offenses. 

Levinson explained that the diagnostic tools are generally relied upon in the field of psychology 

and an accepted standard of practice.

Levinson noted additional factors causing him concern, including that C.A. has a history 

of poor insight and judgment, irresponsibility, arrogance, and limited coping skills which make 

him prone to respond sexually or aggressively to stressful or emotionally laden situations. Further, 

Levinson reported that C.A. does not have a specific, stable, and supportive aftercare plan, and he 

was unable to provide a functional relapse prevention plan. Based on the foregoing, we conclude 

that the district court did not err in affirming the Board’s finding that C.A. suffered from a mental 

illness making him likely to engage in repeat acts of sexual violence and that he was substantially 

unable to control his criminal behavior.

Least Restrictive Treatment Alternative.

Finally, C.A. asserts that the district court erred in finding that the State presented sufficient 

evidence to establish that inpatient sex offender treatment was the least restrictive alternative. We 

find no merit to this argument.

In addition to establishing that C.A. was a dangerous sex offender, the State also had the 

burden of proving by clear and convincing evidence that neither voluntary hospitalization nor other 

alternative treatment less restrictive than inpatient treatment would prevent him from harming 

himself or others. Neb. Rev. Stat. § 71-1209 (Reissue 2009); In re Interest of G.H., 279 Neb. 708, 

781 N.W.2d 438 (2010).

Based on Levinson’s expertise in sex offender risk assessment and treatment and the 

information available to him regarding treatment options, Levinson believed that C.A. would be 

best served in a comprehensive inpatient setting with intensive supervision and intervention to 

address his needs. Levinson opined that the structure and security provided by inpatient treatment 

was necessary in order to prevent C.A. from committing future sex offenses. Although Myers 

offered to provide outpatient treatment to C.A., he deferred to and concurred with Levinson’s 

assessment and diagnoses and based his treatment option on C.A.’s internal motivation to complete 

treatment. However, in Levinson’s opinion, C.A.’s lack of veracity and consistency in self 

reporting posed a significant risk should he be allowed unsupervised in the community and be 

expected to self-report to providers and members of his support system.

In assessing Levinson’s opinion as to the least restrictive treatment alternative, the district 

court considered that the Board saw and heard Levinson’s testimony and observed his demeanor 

and the court gave weight to the Board’s judgment regarding his credibility. We also afford weight 

to the Board’s judgment as to credibility. See In re Interest of S.J., 283 Neb. 507, 810 N.W.2d 720 

(2012). We therefore find no error in the district court’s decision affirming the Board’s finding 

that inpatient treatment is the least restrictive alternative.

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CONCLUSION

We conclude that the district court did not err in affirming the Board’s finding that C.A. is 

a dangerous sex offender and that inpatient treatment is the least restrictive treatment alternative. 

We therefore affirm.

AFFIRMED.

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